‘Tis fitting that the Supreme Court chose to hear oral arguments in two groundbreaking marriage cases during Holy Week.   The week we Christians remember the death and celebrate the resurrection of our Savior.  Yet, nine human justices have our attention and we are frenzied about which way the Court will rule.

For a recent Constitutional Law assignment, I gorged myself on briefs filed in US v. Windsor – the case to be heard tomorrow challenging the constitutionality of the Defense of Marriage Act (DOMA).  After examining the parties’ well-crafted legal arguments relying on centuries of precedent, this is where I land: why we celebrate this Sunday is far more capable of defending marriages than what happens in the high court on Wednesday.

Tomorrow, the Court will hear lawyers argue why it should apply heightened scrutiny over rational basis.  Why homosexuals should be deemed a “quasi-suspect” class.  In no more than two hours total, attorneys will make a case that “yes, homosexuals have been victims of discrimination” or “no, their political voice has never been slighted.”  Accomplished lawyers will make sophisticated policy arguments urging the Court to consider traditional views of marriage, not increasing public support for same-sex marriage, in their decision.  Or vice-versa.

But all arguments are no more than man-made science.  Justices will apply judicial “tests” (that may be no more than a couple decades old) to the law at hand.  They will publish a decision that will be a short read; and we will feel either vindicated or wildly disappointed in our country.  But enough with SCOTUS talk, let’s get back to Easter.  We have a God who cares about all this legal stuff, but is far bigger that it.  To say that He has a position on DOMA (to which all Christians must subscribe), I’m not convinced.  Heightened scrutiny is not in the Bible; it came about because of a footnote in a 1938 Supreme Court decision.  Equal Protection case law will be the Court’s guide here, not Scripture.  And to demand anything more of the Court (or our government in general) is well-intentioned, but places too much stock in man-made things that do not possess ultimate authority on anything.  Congress meets in Washington, not in Eden. 

Federal and state laws condone plenty of things that are antithetical to biblical principles — even things related to God’s design for marriage.  For instance, there are just over 200 chapters in North Carolina’s body of General Statutes, and exactly one is devoted to dissolving a marriage and dividing up marital property.  While clergymen have the privilege of marrying couples under state law, all it takes is the entry of a judge’s order to make a divorce legal.  In NC, adultery merely bars a spouse from receiving alimony in a divorce settlement, but it is legal.  Children born outside of wedlock are recognized.  With proper evidence, courts can legally terminate all rights a parent has to his child.  We are so far from Eden.

So what does it mean if the federal government has to recognize same-sex marriage?  It means equality under our nation’s civil laws for people who have long sought it.  It does not mean total restoration, healing or abolishment of marital sins across our land.  Marriage was, for a long time, a means of survival and necessary for financial viability once you left your parents.  Today, not so.  We clumsily rely on God to show us the way, as we marry out of a desire for companionship.  And He — in His sovereignty — may choose to give us lasting marriages, lonely marriages or even failed marriages.  Or no marriage at all.  Things true for opposite-sex and same-sex couples alike.  We are at His complete mercy, not the federal government’s.  And for our hope, we must wait for Sunday, even as we listen in on Wednesday.

Turning to the Windsor briefs, I read five in all: the three submitted by recognized parties – the United States, the Estate of Windsor and BLAG (Bipartisan Legal Advisory Group) – as well as an Amicus brief for each side: one opposing the DOMA, on behalf of 278 Employers and Organizations Representing Employers, and one supporting DOMA, on behalf of the National Association of Evangelicals, et al.  What follows is a reflection on their respective legal arguments in light of the most recent equal protection cases decided by the Court. (Warning: lots of legal mumbo-jumbo from here on out, but hopefully informative if you want to stick with).

The precise Question Presented in Windsor reads: “Whether Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state.”[1]  In other words, “Does the Constitution prohibit the federal government from ignoring the marital status of validly married same-sex couples who live in states allowing same-sex marriages?”  While states come up with their own rules about what a person needs to be and do to get married, DOMA prohibits the federal government from recognizing same-sex marriages under federal laws – e.g. taxes, social security, benefits, etc.

Having read these Windsor briefs and a variety of key Supreme Court cases on marriage, I would say the deck is stacked against DOMA.  The last century of jurisprudence on marriage and equality seems to point toward a clear result: that DOMA will be found unconstitutional.  Seminal cases on 5th Amendment Equal Protection (Bolling), the fundamental right to marry (Loving) and sexuality (Lawrence) in concert, seem to say that the federal government cannot treat same-sex marriages and opposite-sex marriages differently under the law.

Since this is an equal protection inquiry, the Court must determine what test applies: rational basis or heightened scrutiny.  Because the Court has not yet determined what level of scrutiny sexual orientation deserves, the question simply remains unanswered.  And the future of DOMA will thus turn on the Court’s answer.

In opposition to DOMA, the US and Windsor argue this is “the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under the law.”[2] They assert two core arguments: 1) that classification based on sexual orientation should be subject to heightened scrutiny, and 2) that DOMA fails an Equal Protection challenge when heightened scrutiny is applied.  They argue that the four factors that the Court has historically relied upon for strict scrutiny are satisfied here: 1) gays and lesbians are a group of people with distinguishing characteristics, 2) who have been subjected to a history of discrimination, 3) their sexuality bears no relation to their ability to contribute to society, and 4) they are minorities with limited political power.  Appellants argue that just as the Court reasoned that racial minorities deserve heightened scrutiny, it should do the same here.

Further, appellants argue that if the Court looks for a compelling state interest to keep DOMA as good law, Congress has none.  Congress’ moral disapproval of same-sex marriage, defense of the institution of “traditional heterosexual” marriage and promotion of responsible parenting and child rearing are not compelling enough for DOMA to stand, says the appellants.  Nor are there any “actual purposes” stated in DOMA or in the accompanying House Report for the law.[3]  The US brief points directly to Lawrence where the Court struck down a Texas same-sex sodomy criminal statute because it “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”[4]  Furthermore, US and Windsor argue that DOMA would too fail a rational basis test (if that’s where the Court lands) – DOMA is irrational and achieves no federal purpose.

In rebuttal, BLAG adamantly claims that rational basis is the test that applies here, and in turn, it offers three reasons that the federal government could rationally define marriage as it did in DOMA: 1) to provide a stable structure to raise unintended and unplanned offspring, 2) to encourage the rearing of children by their biological parents, and 3) to promote childrearing by both a mother and a father.  As I read through these arguments, I could not help but think of the plethora of federal law that accomplishes quite the opposite.  For instance, via the Adoption and Safe Families Act of 1997, Congress began offering states financial incentives to think less about returning children to their rehabilitated natural parents, and more about permanently placing removed children with adoptive parents.  It is hard to live in modern America and not know how frequently we the people (whom Congress represents) experience divorce, children born out of wedlock, neglect, abuse and single-parent homes.  Congress’ reasoning for DOMA rests on an ideal that does not match the reality of many American families, nor with the Court’s broad definition of “family” (Moore).  Nevertheless, we learned in Williamson that under the rational basis test, even if one thinks a law is “silly” – if there is some rational basis and some governmental interest, the law stands.

Additionally, BLAG argues that homosexuals have never been denied the right to vote – so they should not be considered a minority with little political power.  The US quickly strikes that argument down – pointing out that citizens born out of wedlock have never been denied the right to vote – but yet the Court has found grounds enough to afford them heightened scrutiny.

Finally, the Amicus briefs help shed light on the moral institution of marriage and modern practicalities relevant to DOMA.  The National Association of Evangelicals (along with other religious groups) begins its brief, “The voices of tens of millions of Americans are represented in the broad cross-section of faith communities that join in this brief.”[5] Like BLAG, they argue rational basis is the proper test here, and argue that a modern view of marriage has strayed from tradition: “two adults in intimate relationship who seek the State’s authorization of that official status and the approval that comes with it.”[6]  They claim that this view does not consider procreation and child-rearing, as the traditional view of marriage does.   Further, they quote cases about opposite-sex marriages as evidence the Court never intended to recognize same-sex marriages.  Yet, the very holdings of these cases stood for ground-breaking expansions of civil rights (Loving) or individuals whose liberties have been restricted because of their unlawful conduct (Turner).  While their moral and traditionalistic policy arguments are perfectly reasonable, they do not pack the same legal punch that DOMA opponents do – with arguments built upon binding precedent.

The only Amicus brief in opposition to DOMA filed at the time this was written is one on behalf of 287 employers who “share a desire to attract, retain, and secure a talented workforce”[7] and are located in states that presently recognize same-sex marriage.  In short, these employers say that opposing federal and state laws “uniquely burden” them – in the way of increased administrative costs and complexities.  What is more, they are being asked by the law to treat employees differently based on their sexual orientation – something that damages the welfare and morale of their workplace.  In theory, Congress set out to have equal protection of all same-sex marriages under federal law, but in practice, employers in states where same-sex marriage is legal, there is anything but equal treatment of married employees.

Reflecting upon key equal protection and marriage cases and the Windsor briefs, I cannot help but believe this will be a clear and swift opinion from the Court.  In the same way that the Court spent very little time rehashing the merits in Brown, this could likely be a similar scenario.  Then, the Court recognized that separate was not equal for our nation’s students, and now, it may recognize similar disparate impact is present here – and declare DOMA unconstitutional.


[1] Brief for the United States, p. (I), US v. Windsor (2013).

[2] Id, 54.

[3] Id, 15.

[4] Id, 19.

[5] Brief for the National Association of Evangelicals, et al. as Amicus Curiae, p. 1, US v. Windsor (2013).

[6] Id, 11.

[7] Brief for 278 Employers and Organizations Representing Employers as Amicus Curiae, p. 1, US v. Windsor (2013).

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